As we have posted in the past, serious concerns have been raised about the role of judicial appointment and review power over adult guardianships in Las Vegas, Clark County, Nevada. In June, the Nevada Supreme Court appointed a 23-member commission to review and recommend any changes to existing practices; the proceedings before the panel began in July.

The concerns have largely focused on the use of a "private" guardianship company, with judicial oversight alleged to be minimal, perhaps connected to the fact that the company's founder was previously a county administrator and also the former "public guardian" for that county. Families raised challenges in certain instances to the allocation of financial resources for alleged incapacitated persons, both seniors and other adults with disabilities, including allegedly improper use of the ward's financial resources to pay high administrative fees and attorneys fees. The individual who is a target of family ire, Jared Shafer, has vehemently denied all allegations.

The commission's recent hearings have been "fiery" and the Clark County area news media are covering the proceedings in detail. Here are links to recent news coverage, beginning with an editorial that appeared this week in the Las Vegas Journal-Review:

Probably the best bang for your CLE buck in Pennsylvania comes from the two-day Elder Law Institute hosted each summer by the Pennsylvania Bar Institute. This year the 18th annual event is on July 23 & 24 in Harrisburg.

Highlights include:

"The Year in Review" with attorneys Marielle Hazen and Robert Clofine sharing duties to report on key legislative, regulatory and judicial developments from the last 12 months;

How to "maximize" eligibility for home and community based services (Steve Feldman and Pam Walz);

Community Legal Services of Philadelphia (CLS) recently issued an important report, examining statistics on complaints and enforcement actions under the purview of Pennsylvania's Department of Health, the chief regulatory body for nursing homes. To put it bluntly, the regulators are getting a failing grade here, with a new Governor (and an uncooperative Legislature on funding issues) facing the need for action. From the executive summary:

The Pennsylvania Department of Health (DOH) has been failing to protect elderly and disabled nursing home residents. Community Legal Services of Philadelphia (CLS) regularly advocates on behalf of nursing home residents, representing them in matters relating to the preservation and protection of their rights. Over the past several years, under the previous governor’s administration, CLS has witnessed DOH significantly decrease its enforcement of nursing home regulations and patient protections. In an analysis of DOH nursing home investigations and inspections that occurred in Philadelphia from 2012-2014, CLS has found that DOH’s conduct has put elderly and disabled Pennsylvanians at risk of physical harm or death.

During this time period, DOH dismissed an extraordinary number of complaints against nursing homes, failed to properly follow up when a violation was found, mischaracterized harm against patients, and dramatically decreased its penalties against nursing homes. Unfortunately, DOH’s failures have not only placed residents at risk, but they have also resulted in inaccurate publicly available information that forces potential residents and their families to make major life decisions without all of the important facts. Pennsylvania must fix this crisis and ensure the safety of elderly and disabled nursing home residents.

The CLS authors make recommendations for change, including a commitment to "better transparency to the public regarding investigations and characterization of harm."

For more details, read the press summaries and the full reporton "Careless: How the Pennsylvania Department of Health has Risked the Lives of Elderly and Disabled Nursing Home Residents."

Louisiana Governor Bobby Jindal, one of (now many) candidates for the Republican nomination for President, has been making a fair amount of press of late, for his positions on so-called medical marijuana, Common Core education standards, and how his state will handle same-sex marriage. Lower on the radar screen, however, was his signing ofAct 260, an interesting package of legal changes affecting obligations between various family members.

One of these changes was to adopt a new provision affecting the obligations of "ascendants and descendants" to provide "basic necessities of life" for family members "in need." In other words, filial support.

Louisiana already had a provision, Section 229, providing that "children are bound to maintain their father and mother and other ascendants who are in need." The new provision continues this statutory obligation, but makes enforcement "personal" only. The substitute provision was signed into law on June 29 and becomes effective on January 1, 2016. New Article 237 of Act 260 provides:

Descendants are bound to provide the basic necessities of life to their ascendants who are in need, upon proof of inability to obtain these necessities by other means or from other sources, and ascendants are likewise bound to provide for their needy descendants, this obligation being reciprocal.

This obligation is strictly personal and is limited to the basic necessities of food, clothing, shelter, and health care.

This obligation is owed by descendants and ascendants in the order of their degree of relationship to the obligee and is joint and divisible among obligors. Nevertheless, if the obligee is married, the obligation of support owed by his descendants and ascendants is secondary to the obligation owed by his spouse.

Official comments explaining the revisions emphasize that the necessities obligation kicks in only when the needy family member is unable to obtain necessities "by other means" or from "other sources," thus signaling any filial support obligation is secondary to the individual's eligibility for public assistance or other welfare benefits. Further "for the first time" Louisiana law "provides a ranking of those descendants and ascendants who owe this reciprocal, lifetime obligation."

The commentary explains that the revision makes the obligation "strictly personal," and there it precludes enforcement by "a third person." Thus, it would appear that unlike in Pennsylvania (or Germany?) nursing homes and the state may not use these statutes in order to sue family members to collect necessities for indigent elders.

According to the comments, the obligation is also not "heritable." This appears to reflect a Louisiana Court of Appeals decision from 2010, In re Succession of Elie,denying a mother's claims for funds from a deceased son's estate brought under former Section 229.

The State Bar of Californiaoffers an on-line "guide for maturing Californians," available in PDF format. This is an updated, 2015 version. At first I was a bit dubious, as the length is just 12 pages and the print is small. However, on closer look (and with the help of that little built-in magnifying class for reading PDF documents on line), I found it fairly comprehensive and a good starting place. It works not just for seniors but the whole family.

Written in a logical Q & A format, often starting with "yes or no" answers before offering a more detailed explanation and suggested resources, the brochure covers topics such as:

What is Supplemental Security Income?

Can my landlord evict me for any reason at all?

Can I install grab bars, lower my counters or make other needed modifications over my landlord's objections?

How is Medi-Cal different from Medicare?

How can I help ensure that my affairs will be handled my way if I become incapacitated?

If my elderly mother gives away her assets, will Medi-Cal pay for a nursing home?

In addition, the brochure describes more subtle topics such as how "assisted living communities," may differ (and be covered by different regulations ) than "continuing care retirement communities," or why "living trust mills" are something to avoid. It warns that insurance brokers and agents other investment advisors are prohibited in California from using "senior specific" certificates or designations to mislead consumers.

According to the July 215 issue of the California Bar Journal, the senior guide is available in both Spanish and English, although I could only find the English version on-line. Free print copies are available for order (although donations to offset costs are accepted!)

The legal action asserts Golden Living violated the Unfair Trade Practices and Consumer Protection Law by deceiving consumers through its marketing practices.

The company advertised it would keep its residents clean and comfortable while providing food and water at any time. But its facilities were understaffed, leaving residents thirsty, hungry, dirty, unkempt and sometimes unable to summon anyone to help meet their most basic needs, such as going to the bathroom, the legal action asserts.

According to the AG's office, evidence comes from residents' family members and former employees of Golden Living, including certified nursing assistants. The allegations focus on an alleged "widespread pattern of understaffing and omitted care."

Further, the AG makes the following specific allegations:

Continent residents left in diapers because they were unable to obtain assistance going to the bathroom.

Incontinent residents left in soiled diapers, in their own feces or urine, for extended periods of time.

Residents at risk for bedsores from not being turned every two hours as required.

Residents not receiving range of motion exercises.

Residents not receiving showers or other hygiene services as required.

Residents being woken at 5 a.m. or earlier to be washed and dressed for the day.

Residents not being timely dressed in order to attend their meals.

Residents not being escorted to the dining hall and sometimes missing meals entirely.

Long waits for responses to call bells or no responses at all.

Staff, under the direction of management or fear of management, falsifying records to indicate residents received services when in fact they did not.

Improved staffing when state inspections occurred, leading to deceit about the true conditions at the facility.

The investigation also included a review of staffing levels self-reported by Golden Living facilities and deficiencies cited in surveys conducted by the state Department of Health.

According to one news source, Golden Living responded to the suit with a statement expressing the company's confidence that the "claims made by the Attorney General are baseless and wholly without merit," and further alleging the suit is the "unfortunate result of Kathleen Kane's inappropriate and questionable relationship with a Washington D.C.-based plaintiff's firm that preys on legitimate businesses and is paid by contingency fees." (For those of you not privy to the local news on Pennsylvania politics generally and AG Kathleen Kane specifically, I think it is fair to say that the press frequently refers to her as the "embattled AG." She first took office in January 2013).

The Pennsylvania AG's suit comes on the heels of a broader report released in June by Community Legal Services of Philadelphia, asserting that from 2012 through 2014 the Pennsylvania Department of Health under former Governor Corbett's administration, failed significantly to conduct proper investigation of complaints about a large number of nursing homes (not limited to Golden Living) and failed to enforce existing regulations designed to protect residents.

For Golden Living, allegations are not limited to Pennsylvania. For example, in June 2015, claims about chronic understaffing of 12 Golden Living Center nursing homes in Arkansas were certified to be litigated as a class action.

On June 24, 2015, the Superior Court for the State of California, County of Alameda, Judge Evelio Grillo presiding, issued a mandamus in a court suit filed in 2013 by California Advocates for Nursing Home Reform (CANHR). Lots of interesting and important issues here, including:

the finding that CANHR, a nonprofit agency "dedicated to improving the quality of care for California's nursing home residents," has standing to bring a citizen action to challenge the reliance by nursing homes on California law to permit them to make decisions "for" incapacitated residents who do not have court appointed agents, family or other surrogate decision makers;

the recognition that the mandate is necessary, even though it will require major changes in how care facilities operate in the daily care of patients.

The 44 page opinion concludes:

"The court is aware that this statute was the Legislature's attempt to deal with a very difficult and significant problem of how to provide timely and effective medical treatment to patients in skilled nursing facilities without delays that were often happening when a petition had to be filed in probate court. The court acknowledges that this order will likely create problems in how many skilled nursing facilities currently operate.... The court has considered this burden and weighed it against the due process concerns, and finds that the due process rights of these patients is more compelling. The stakes are simply too high to hold otherwise. Any error in these situations has the possibility of depriving a patient of his or her right to make medical decisions about his or her own life that may result in significant consequences, including death. A patient may not only lose the ability to make his or her health decisions, but also to manage his or her own finances, determine his or her visitors, and the ability to leave the facility."

On June 24, 2015, a Florida intermediate appellate court reversed the 2013 conviction of Tyrone Javallena for "financial exploitation of an elderly person or disabled adult," ruling that there was no evidence the defendant in question, who was the husband of a financial advisor for a 94-year-old woman who made late-in-life changes to her estate plan benefitting the couple, had the requisite knowledge of any plan to exploit. In Javallena v. State, the 4th DCA ruled:

The [elderly woman's estate] documents were amended so that, ultimately, the defendant and his wife were residual beneficiaries of the estate. The defendant and his wife served as witnesses to Teris' execution of some of the amendments, and at some point in time, his wife became aware of the substance of the amendments. However, there was no evidence that the defendant, who also chauffeured Teris on errands, had any knowledge of a plan to exploit the victim. As for Teris' mental capacity at the time she executed the amendments to her estate documents, there was conflicting evidence before the jury.

On appeal, the defendant argues that his conviction under a principals theory constituted error as there was no evidence he participated in the exploitation. We agree.

"To convict under a principals theory, the State is required to prove that the defendant had a conscious intent that the criminal act be done and . . . the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit or attempt to commit the crime."Hall v. State, 100 So. 3d 288, 289 (Fla. 4th DCA 2012) (citation and internal quotation marks omitted).

The original conviction of Javallena and his wife in 2013 was high profile news, in part because of the estate in question -- referred to in the appellate opinion as "vast" -- was reported to be $10 million. No word on the status of any appeal on the separate conviction of Javallena's wife.

Earlier this week I recommended Atul Gawande's book, Being Mortal: Medicine and What Matters in the End, and I offered an excerpt from his discussion of how doctors are impacted by practical limits on their goals as solvers of problems. But the book is about more than just medicine. Another compelling chapter traces attempts to avoid "nursing homes" and the once cutting edge trend of "assisted living" as an alternative:

The idea spread astoundingly quickly. Around 1990, based on [Keren Brown] Wilson's successes, Oregon launched an initiative to encourage the building of more homes like hers. Wilson worked with her husband to replicate their model and to help others do the same. They found a ready market. People proved willing to pay considerable sums to avoid ending up in a nursing home, and several states agreed to cover the costs for poor elders.

Not long after that, Wilson went to Wall Street for capital, to build more places. Her company, Assisted Living Concepts, went public. Others sparing up with names like Sunrise, Atria, Sterling, and Karrington, and assisted living became the fastest growing form of senior housing in the country. By 2000, Wilson had expanded her company from fewer than a hundred employees to more than three thousand. It operated 184 residents in eighteen states. By 2010, the number of people in assisted living was approaching the number in nursing homes.

But a distressing thing happened along the way. The concept of assisted living became so popular that developers began slapping the name on just about anything. The idea mutated from a radical alternative to nursing homes into a menagerie of watered-down versions with fewer services. Wilson testified before Congress and spoke across the country about her increasing alarm at the way the ideas was evolving....

In 2014, the California Court of Appeal issued a decision recognizing broad application of California's Elder Abuse laws to contract-related disputes. In Bounds v. Superior Court, the appellate court set the stage for the important ruling:

Bounds, an 88–year–old widow allegedly suffering from Alzheimer's disease, alleges in her cross-complaint that for approximately six months, Real Parties in Interest Gerry Mayer (Mayer), Joseph Sojka (Sojka), and their associated businesses entities (KMA Group, LLC, Kopykake Enterprises, and Sojka–Nikkel Commercial Realty Group) engaged in abusive conduct, resulting in her signing, among other documents, escrow instructions authorizing the sale of real property owned by the Trust. Because escrow was cancelled, the Trust retains title to, and Bounds remains in possession of, the property. However, petitioners allege that the existence of the escrow instructions significantly impairs their right to sell the property at fair market value or to use it to secure a loan on favorable terms.

These alleged facts raise an issue of first impression: whether to allege a “taking” of a property right under the [California Elder Abuse] Act, it is sufficient to plead that an elder has entered into an unconsummated agreement which, in effect, significantly impairs the value of the elder's property, or whether the Act requires that the agreement have been performed and title have been conveyed.....

As explained more fully below, we conclude that because property rights include, among other things, the right to use and sell property ... petitioners' allegations that Bounds entered into an executor agreement which significantly impaired the value of the property owned by the Trust adequately pleads a "taking" -- that is, adequately pleads that Bounds has been "deprived of [a] property right .... by means of an agreement," within the meaning of [California law] section 15610.30(c).

Therefore the appellate court permitted the case to go forward against the alleged abusers, who were alleged to have frightened the aging Bounds into selling property at a bargain price.

More recently, Sara Colon, one of the lawyers represented the elderly Ms. Bounds, and Catherine Eschbach, a law student at Pepperdine Law School, collaborated on an article for the Los Angeles Lawyer magazine, published in April 2015. In Out of Bounds, they explain the significance of the Bounds case, including its application in the context of predatory lending schemes.

Last fall, I blogged aboutIn re Skinner, a case in which one son was trying to prevent a brother from obtaining a discharge in bankruptcy court of a "filial support" judgment to a long-term care facility. Both brothers had been sued, but one brother, Thomas, had defaulted on the suit, resulting in a default judgment as to his liability. The bankruptcy court concluded that Brother William lacked standing" to prevent Brother Thomas' discharge of debt to an assisted living facility for care of their mother.

In May, 2015 the United States District Court for the Eastern District of Pennsylvania affirmed the bankruptcy court's dismissal of the adversary proceeding, concluding that "William Skinner has not adequately alleged that he is a bankruptcy creditor of Thomas Skinner. He therefore lacks standing to bring an action challenging the dischargeability of Thomas Skinner's debts."

The additional allegations described in the District Court opinion -- which are reminiscent of the allegations of misuse of Powers of Attorney in Presbyterian Medical Center v. Budd(Pa. Super. 2013) -- demonstrate the complicated nature of filial support suits for family members. This is especially true in Pennsylvania where courts seem to be treating claims of statutory liability as "joint and several" in nature, and not proportional based on fault. For the latest see In re Skinner, 2015 WL 3400943, (E.D. Pa. May 27, 2015).

On June 5, 2015, the Attorney General for Pennsylvania announced filing of a civil suit, seeking permanent injunctive relief against a lawyer and his law firm, for tactics alleged to violate state unfair trade practice and debt collection laws. The allegations include misuse of Pennsylvania's filial support law to demand payment by family members for medical service fees incurred by the original debtor. Here is the link to the AG's press release.

Boy, it's been a tough month already for Pennsylvania debt collectors! The AG's suit is not against the same law firm involved in the Second Circuit's decision reported here earlier this week.

In Eades v. Kennedy PC Law Offices, decided June 4, 2015, the Second Circuit ruled that a federal court in New York has personal jurisdiction to address alleged unfair debt collection practices of a Pennsylvania law firm in seeking to collect unpaid nursing home fees totaling $8,000. The plaintiffs, New York residents -- the husband and adult daughter of a woman in a Pennsylvania nursing home -- challenged statements in correspondence and phone communications allegedly made by the Pennsylvania law firm. The claims against the daughter were based on Pennsylvania's filial support law.

As reported on this Blog in December 2013, the United States District Court for the Western District of New York dismissed the suit, finding no personal jurisdiction and further rejecting application of the federal Fair Debt Collection Practices Act (FDCPA). The Second Circuit's ruling concludes, however, that the law firm's "three purposeful contacts with New York," of mailing a debt collection notice to the New York family members, engaging in a debt collection phone call with the daughter, and mailing a summons and complaint to both the daughter and the nursing home resident's husband, are enough to establish personal jurisdiction under New York's long-arm statute. Further, the defendant law firm had not shown that exercise of such jurisdiction was unreasonable.

On the questions raised by the FDCPA claims, the Second Circuit rejected several key arguments by the plaintiffs, concluding that Pennsylvania's filial support law is not preempted by the Nursing Home Reform Act's prohibition on nursing homes requiring third party guarantees of payment:

The Florida Joint Public Policy Task Force for the Aged and Disabled urges individuals, families and attorneys to bring emerging problems with Medicaid Managed Care in Florida to the attention of administrators at the Agency for Health Care Administration (AHCA). Only by staying on top of any problems can the new systems be evaluated and corrected.

In the Florida Bar News, the Task Force writes:

One issue the Task Force — a combined effort of the Academy of Florida Elder Law Attorneys and The Florida Bar’s Elder Law Section — is concerned about is that seniors on Medicaid may be signing forms allowing their Medicaid managed care plans (MCP) to take control over who receives information from the state, including notices for annual deadlines for ongoing eligibility, without understanding what they are signing. This led to an MCP missing the deadline for at least one client.

“A wife was understandably very upset when she found out her husband’s Medicaid had been cancelled,” says Emma Hemness, the president of the Academy of Florida Elder Law Attorneys, Task Force member and elder law attorney in Brandon. “The MCPs are supposed to make sure this doesn’t happen. The wife says she never received a notice and she doesn’t remember giving any authority to the MCP.

In the PBS documentary airing in May and June, Caring for Mom & Dad, the second half of the program focuses on policy initiatives to support services for older adults. One interesting highlight is Ohio's use of local property tax levies that directly supplement senior services. Begun in the early 1980s as a referendum initiative in just one county, similar programs have been adopted by voters in counties or municipalities in more than 70 of Ohio's 88 counties. That is an amazing history, especially given the usual hostilities about "new" taxes. Voters appear to recognize that the levies permit unique flexibility to design programs that meet the needs of their community's seniors, whether in rural or urban areas, such as transportation services or home care subsidies. The revenue now generated in Ohio, more than $125 million per year, exceeds federal grant funding under the Older Americans Act nationally.

As a reminder, WPSU-TV is airing Caring for Mom & Dad at 8 p.m. this evening in Pennsylvania, followed by a one hour "Conversations Live" open to incoming calls, texts and emails. Details available here.

From our roving reporter (okay, actually from my great Dickinson Law colleague, Professor Laurel Terry) we get headline news in Palm Beach, Florida and a front-page question about whether an older man has the capacity necessary under that state's "unique" law to seek an end to his later-in-life second marriage. You won't be surprised to read that money is involved in this lawsuit:

Sitting in his oceanfront condominium in Palm Beach, [87-year old] Martin Zelman can’t immediately name the president of the United States, isn’t sure what year it is and admits he can’t remember the month or the date of Valentine's Day. But he knows he wants to divorce his wife [age 80], whom he married in 2000, 7 years after they began dating.

Or does he? That's the $10 million dollar question that surrounds Zelman vs. Zelman, a unique and legally complex divorce case wending its way through Palm Beach County Circuit Court.

While the issues raised are intensely personal, they lay bare the ways adult children could use the court system to manipulate prenuptial agreements designed to protect spouses in second marriages. They also expose quirks in Florida's divorce laws, particularly a little known caveat that imposes a three-year waiting period in cases where one of the spouses has been declared mentally unfit.

For more, see Can Florida Man with Dementia File for Divorce? by Jane Musgrave for the Palm Beach Post. This story brings to mind regular reader Jennifer Young's recent, wry comment on a separate post, strongly recommending "shacking up" to avoid late-in-life second guessing of second marriages. All kind of sad, isn't it?

The year 2014 brought a new development in the bioethics “laboratory of the states.” Five states adopted “right to try” laws intended to promote terminally ill patients’ access to investigational drugs. Many more state legislatures are now considering such laws. The campaign for right to try laws is the latest move in an ongoing effort to give seriously ill patients access to drugs whose safety and effectiveness remain largely unknown. Although scientists and policy-makers oppose the right to try approach, it has proven quite popular among state legislators and the public.

As we described last month, Nevada is one of the states facing serious "elder guardianship" concerns, and specifically concerns about court-appointed, fee-paid private guardians. This week, a Nevada court removed a guardian in one of the cases at issue, calling the problems observed "enormous" and "more than technical." The court commissioner who granted the requested relief continues to be the focus of other inquiries about his supervision of private guardians. Contact 13 News described matters revealed in its own investigation and presented in court:

Since the fall of 2013, the court has allowed [the guardian] Parks to control every aspect of [an elderly married couple's] lives--where they would live, how their money was spent, what items they could keep--and sometimes, who they could see.

When Contact 13 looked at the guardianship case, we found mistakes, over-charging and double-billing by [guardian] Parks. Our findings played a key role in Wednesday morning's hearing.

"She's costing me $300 an hour to sit here and degrade me and my family," Rudy said. "I will not stand for it and I will not pay for it."

Parks' attorney did the talking for her, claiming the process to remove Parks is being rushed, "...based on innuendo, based on hearsay, based on salacious representations made on the media about Ms. Parks," said Aileen Cohen. "This matter is turning into a witch hunt."

But Commissioner Jon Norheim was having none of it. "The idea that she's been compliant? Not even close."

UPDATE: Before the virtual ink had even dried on my posting above about one couple's case, additional word comes that the Chief Judge of the Eighth Judicial District, Clark County, Nevada has ordered systemic review and immediate changes in the guardianship appointment and oversight authority. For the Court's important May 21, 2015 order, see here. Additional details are available from the Las Vegas Review Journal.